Power v. Robertson

• Citation: 93 So. 769,130 Miss. 188
• Decision Date: 23 October 1922
• Docket Number: 23128
• Court: United States State Supreme Court of Mississippi
• Parties: POWER, SECRETARY OF STATE, et al. v. ROBERTSON, STATE REVENUE AGENT

93 So. 769

130 Miss. 188

POWER, SECRETARY OF STATE, et al. v. ROBERTSON, STATE REVENUE AGENT

No. 23128

Supreme Court of Mississippi

October 23, 1922

APPEAL from circuit court of Hinds county, HON. WILEY H. POTTER Judge.

Petition for certiorari by Stokes V. Robertson State Revenue Agent, against Joseph W. Power, Secretary of State, and others, to review initiative and referendum proceedings. There was a judgment prohibiting the secretary of state from ordering an election and vacating his proclamation therefor, and defendants appeal. Affirmed.

Judgment affirmed.

H. Cassedy Holden, assistant attorney-general for the state.

The Demurrer Was Improperly Overruled. 1. The complaint stated no cause of action. The complaint, petition, or challenge was filed in the lower court by Stokes V. Robertson as a taxpayer and as the incumbent of the office of state revenue agent. In neither capacity was he entitled to the relief sought because at the time of the filing of the complaint he had suffered no injury or damage. Power v. Ratliff, 112 Miss. 93, 72 So. 864.

The office of appellee is a statutory office, and as such may be regulated or abolished entirely by the people or their legislature. The appellee has no right, civil or political to this office or any of its emoluments that is paramount to the right and beyond the power of the people to regulate directly or indirectly.

It will doubtless be contended that under section 33 of the constitution as amended, an initiative petition may be challenged in the circuit court by any citizen as a matter of right granted therein expressly or by necessary implication; that the challenger does not have to show that he has been or will be injured or damaged. The basis for such a contention is apparent only and is in reality entirely fallacious.

It is true that amended section 33 provides that: "In the event that sufficiency of the petition is challenged, the question shall be tried at once, in term-time or in vacation and such cause shall be a preference cause over all other causes; and further that in the event of legal proceedings in any court to prevent giving effect to any petition, upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition." Can the conclusion be fairly drawn from these two clauses (and they are the only two in the entire amendment that mention legal proceedings) that the intent was to give any citizen the positive and arbitrary right to institute legal proceedings in the circuit court to prevent an initiative petition from taking effect, regardless of whether or not he was affected in any way as to his property or his political or civil rights? If such had been the intent, it could and would have been easily and clearly stated.

The complaint or petition was ill-advised, premature, devoid of merit in law, and the demurrer thereto should have been sustained on this ground alone. Power v. Ratliff, supra, and authorities cited therein. Friendly v. Olcott, 61 Oregon 581.

2. The court was without jurisdiction. Under the common law, there was no procedure or court for the contest of an election. Quo warranto proceedings were extant then as now but only to be resorted to for trial of the right to office. By statute of this state the election of county officers may be contested in the circuit court. There is no statutory machinery for contesting the election of state officers or for contesting initiative and referendum elections. However, the validity of measures adopted by initiative and referendum may be questioned in the same manner that legislative enactments are attacked in the courts.

It is plain that the lower court had no power to entertain appellee's complaint by virtue of its common-law jurisdiction. Under the Constitution the circuit court has original jurisdiction "in all matters civil and criminal" not vested by the Constitution in some other court (section 156). By statute, the circuit court has "original jurisdiction in all actions when the principal of the amount in controversy exceeds two hundred dollars, and of all other actions and causes, matters and things arising under the Constitution and laws of this state which are not exclusively cognizable in some other court." Section 702, Code 1906.

When the Constitution and code were adopted in 1890 and 1906 there existed no such thing as the "initiative and referendum." Such an institution was not contemplated by either the framers of the fundamental law or the statute-makers. Construing the two instruments in the light of the times when they were established, as they must be construed and interpreted, it is plain that "all matters civil and criminal" means such causes of action, and "causes, matters and things arising under the Constitution and laws of this state" means all actions and causes which might then arise. The novel and extraordinary legislative procedure of initiative and referendum came later in 1915 and was not within the perspective of the Constitution makers and legislators of 1890 and 1906. The circuit court, nor any other court at that time had common-law jurisdiction of election contests. Such jurisdiction was necessarily conferred by statute and this was limited to elections of county officers.

Now, the complaint or challenge of the appellee is not a "civil matter." A "civil matter," "civil cause," or "civil suit" is a proceeding in a court of justice by one party against another for the enforcement or protection of a private right or for the redress of a private wrong. The right to the office, and compensation thereof, of state revenue agent is not a private right, and the regulation or total abolishment of either is not a private wrong to the appellee. His complaint is neither an action ex contractu nor ex delicto. It is certainly not a "civil matter" within the import of the constitutional provisions and statutes defining jurisdiction.

3. The amendment is not self-executing as to the contest of initiative petitions in the courts. A constitutional provision is self-executing where no legislation is necessary to give effect to it. 6 R. C. L. page 57, par. 52. The question in every case is whether the language of a Constitution is addressed to the courts or the legislature. Willis v. Mabon (Minn.), 16 L. R. A. 281, State v. Kyle (Mo.), 56 L. R. A. 115.

One of the recognized rules is that a constitutional provision is not self-executing when it merely lays down general principles, but that it is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty imposed may be enforced, without the aid of legislation. In other words, it must be regarded as self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination of its terms, and there is no language indicating that the subject is referred to the legislature for action. Note 18 Ann. Cas., 200; Davis v. Burks, 179 U.S. 399; Notes: 50 L. R. A. (U. S.) 198; Ann. Cas. 1914-C 1116.

Amended section 33 is complete in its provisions for the initiative and referendum process of legislation except the matter of contesting a petition in the courts. The entire procedure is laid down for filing petitions; the number of signatures required is specified; the qualifications of signers are set forth; all of the details of the petitions are provided for; verification and proof of signatures is described; the duties of the secretary of state are described fully; as to all of these things, and others, the amendment is clearly self-executing. No statute is needed to give effect to these provisions.

But the matter of a court proceeding is not provided for, no court is designated to try challenges of petitions and no procedure is described to try such a contest. The amendment is palpably incomplete in this respect; it is not self-executing, to this extent. In the event that the sufficiency of the petition is challenged, the question shall be tried at once, in term-time or in vacation, and such cause shall be a preference cause over all other causes. . . . In the event of legal proceedings in any court to prevent giving effect to any petition, upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition. These are the only words of the amendment that even remotely relate to a court.

In the event that the sufficiency of the petition is challenged--challenged how and where? In the event of legal proceedings in any court. What court, since there was and is no court having jurisdiction of such a matter? Shall it be said that the mere laying down of rules as to preference on a court docket and the burden of proof constitutes the circuit court, or any court, a tribunal to try the contest of a petition? Surely not, but on the other hand it is plain that the amendment contemplates that the legislature will provide by statute for the procedure of a contest and designate the court to try such issues.

The question shall be tried at once--where? In a court to be named by the legislature, if otherwise no court had jurisdiction. This language is addressed to the legislature, not to the courts. It would have been easy to address the courts in plain and unmistakable terms, describing the procedure for contests or petitions and conferring jurisdiction on a certain court.

Amended section 33 was taken almost bodily from the Constitution of Missouri. In that state the legislature has placed an entire chapter in the code in aid of the amendment. Under those statutes the jurisdiction of contests of initiative petitions is expressly conferred upon the circuit court of Cole...